While lawyers from the NSA and CIA expressed reservations
about the wiretapping program, President George W. Bush approved it. (photo:
Getty Images)

Barack Obama built up much of his electoral base as a critic of George W
Bush's policies, from war to surveillance. In office, he has pursued many of the
same policies even more vigorously, and nowhere is this more true than in his
hoarding of executive power. The administration's
collection of phone records data, and its legal defences thereof, illustrate
the problem acutely.

In opposition, Obama criticised Bush's policy of spying on
citizens' phone calls – under the rubric of the so-called Terrorist Surveillance
Programme – and
threatened to filibuster a bill being pushed through the Senate in 2008 to
retroactively legalise the practice. He voted for the bill, but protested that
he was doing so reluctantly. He claimed to oppose the attempt to give legal
cover to the previous administration and the companies colluding in its actions.

Yet, once in office, Obama continued the policy of intrusion
on a vast and indiscriminate
scale. The same can be said for his attorney general, Eric Holder, once a
firm critic of the Bush administration's spying, now a firm practitioner of the
same. Perhaps most alarmingly, the Obama team has continued with the same legal
doctrines.

Prior to the 2008 amendments of the Foreign Intelligence
Surveillance Act (Fisa), the law stated that the government could not spy on
domestic calls unless a court believed there was probable cause to believe the
target of surveillance was an agent of a foreign power. It would be a mistake to
underestimate the Bush administration's legal virtuosity, however. Just as it
displayed considerable creativity in legalising Guantánamo and torture, its
justifications for warrantless wiretapping inventively cited the post-9/11
Authorisation for the Use of Military Force as an implicit repudiation of
sections of FISA.

It used to be said that the Nazi legal scholar Carl Schmitt
was the true éminence grise of the Bush administration: that the
principle of a "state of exception" was being invoked, post-9/11, to bestow
führer-like power on the president. Certainly, there was a sense in which they
treated the law as – in the words of the title of John Yoo's memoir –
war by other means.

Belying the "state of exception" analysis, however, Obama has
adopted the Bush administration's legal definitions, and tried to block any
judicial ruling that any laws were evaded or broken under the Bush
administration. He has also sought, with some success, to invoke the
doctrine of
state secrecy to prevent any judicial review of potentially criminal actions
in the Bush era.

In the case of wiretapping, this includes the scandalous
instance in which the government spied on communications between lawyers and
their clients, the Al-Haramain Islamic Foundation, in the context of a federal
action against the charity. Though the charity had documentary proof of the Bush
administration doing this, the Obama administration moved to prevent the
document from being considered by a court, citing state secrecy. And while
promising self-restraint in the use of this doctrine, it has
continually had recourse to it.

The doctrine of state secrecy even extends to the legal
justifications for collecting data on phone calls. Glenn Greenwald refers to "numerous
cryptic public warnings by two US senators" who warn of "secret legal
interpretations" to justify a staggering expansion of the surveillance remit.
They say: "There is now a significant gap between what most Americans think
the law allows and what the government secretly claims the law allows."

Technically, one could argue that there is no need for this
surveillance. The inspector general of five federal intelligence bureaucracies
published a report in 2009 indicating that FISA's requirements had in no way
hindered intelligence-gathering efforts. That may be missing the point, however.
Expanding the state's ability to gather information on citizens, no matter what
the justification, always increases its options – be they repressive or
productive. Further, the convergence of spying on the one hand and secrecy on
the other is just characteristic of the state's tendency to monopolise
information.

The conventional liberal critique of such practices is
prudential. As the liberal writer Stephen Holmes argued, secrecy undermines
security by allowing the state to conceal and perpetuate errors. It removes the
necessity to have plausible reasons for one's policies, so that eventually one
stops having plausible reasons. These strictures apply even more in the case of
emergencies. Holmes evoked the image of an emergency room, in which medical
staff are having to cope with life-threatening situations; unless their
behaviour is governed by certain rules, medical staff will be prone to error.

This metaphor may work, if we assume the patient is a
crisis-stricken American capitalism and its global authority. Obama's hoarding
of executive power can only be understood in the context of his mission to
restore American global power, rationalise its productive base, and expand the
state's capacity to process dysfunctions. In this respect, his agenda is not
fundamentally dissimilar from that of his predecessor, which is why he needs
many of the same means.